1. The accused was a clerk in the office of the Municipal Board of Pilibhit, and it was his duty to deal with applications for renewal of licences for hand carts. He should have taken a licenee fee of Rs. 1-8-0 for each hand-cart and 6 annas for the preparation of the takhti or board showing the number of the cart. The case for the prosecution was that he had demanded and received Rs. 2 from several applicants, and had thereby cheated each of them out of 2 annas.
2. As it was not permissible to charge the accused with more than three such acts of cheating, the prosecution selected three complainants and produced evidence that each of them had been induced to pay two annas more than could properly have been demanded. The prosecution produced also evidence that the accused had cheated a number of other applicants for licences. The accused was convicted and appealed to the Sessions Judge on various grounds, one of which was that he had been prejudiced' by the admission of evidence that he had taken two annas in excess from several parsons other than those named in the charges framed against him. The Sessions Judge held that the evidence complained of ought not to have been admitted and he has ordered a fresh trial.
3. This is an application presented under the orders of the Local Government for revision of the orders of the Sessions Judge. On behalf of the Crown it is contended that the evidence which has been ruled out by the Sessions Judge was rightly admitted either under Section 14 or under Section 15 of the Evidence Act. It appears to me that Section 15 cannot possibly apply to the case. There is no question whether the accused's act was accidental or intentional or done with a particular knowledge or intention. He admits and it is obvious that he knew what amount he was entitled to take from applicants for licences. In support of the contention that the evidence is admissible under Section 14, Mr. Malcomson relied upon the decision of the Calcutta High Court in Emperor v. Dehendra Prasad (1909) I.L.R. 85 Calc. 758 In that case the accused was charged with having cheated one Boodri by falsely representing that he was the Dewan of an estate and could obtain an appointment for him and thereby obtaining a sum of money as a pretended security deposit. The cross examination foreshadowed the defence that the accused's intention at the time of the representation was not dishonest. The court held that evidence was admissible to show that at or about the same time the accused had had similar transactions with other persons which taken together showed that the accused's intention was dishonest and that the transaction with Boodri was only one of a systamatic series of frauds. I am unable to sea how that case is any authority for the admission of the evidence which has been objected to in this case. A ruling which applies closely to the present case is that in Empress v. M.J. Vyapoory Moodeliur (1891) I.L.R. 6 Cals. 655 where accused was charged with having received a bribe on three specific occasions and an attempt was made to prove that he had received bribes from the same firm on other occasions. The evidence was ruled out on the ground that Section 14 of the Evidence Act applies to cases where a particular act is more or less criminal or culpable according to the state of mind or feeling of the person who does it, not to cases where the question of guilt or innocence depends upon actual facts, and not upon the state of a man's mind or feeling.
4. In the present case the accused knew what amount he was entitled to take, and the only question is whether he represented to the three complainants named in the charge that they were bound to pay two annas more, and on the strength of that representation induced each of them to pay Rs. 2 instead of Rs. 1-14 and put the difference in his pocket. It appears to me that Section 14 of the Evidence Act does not justify the admission of the evidence which has been objected to.
5. But I do not understand why the Sessions Judge ordered a fresh trial. He should have disposed of the case on the evidence which was admissible. I would invite his attention to Section 167 of the Evidence Act. I set aside the order of the Sessions Judge and direct that the appeal be disposed of according to law.